‘Equal Opportunity Mischief’

With midterm Congressional elections less than seven months away, and the Supreme Court considering arguments in two potentially landmark cases, gerrymandering has moved from a debate topic for political junkies to a national concern. In response, the Rappaport Center for Law and Public Policy and the BC Black Law Students Association co-sponsored “Gerrymandering: A Threat to Democracy,” at BC Law on April 10.

Geraldine Hines, the Rappaport Distinguished Visiting Professor (above), was joined by Michael Li, senior counsel at the NYU Law School Brennan Center for Justice, and Michael Kimberly, partner at Mayer Brown, to discuss the historical roots of gerrymandering and the extreme threat it poses in the current, hyper-partisan political environment. “This is a tactic as old as the Republic,” Hines noted, “but it’s gained new life as both major parties have become ever bolder pressing partisan advantages, and ensuring legislators choose their voters rather than the other way around. It’s equal opportunity mischief.”

Justice Hines opened the panel by recognizing that “the Supreme Court has said that extreme gerrymandering does violate the Constitution, but has still left the question unresolved. How can an issue so central to our democracy escape resolution by the Court?” she asked.

Li and Kimberly attempted to answer this question by reviewing previous gerrymandering practices and cases before turning the discussion to two redistricting cases argued before the Court this term: Gill v. Whitford and Benisek v. Lamone.

“This can be traced back to Patrick Henry and James Madison,” Li acknowledged, “but it’s getting worse because of technology and data. In the past, gerrymanders didn’t always work after an election or two. That’s changed today, and that’s why it’s a more urgent issue for courts.”

Kimberly, who argued the Benisek case before the Supreme Court last month, recapped the justiciability and political concerns that have prevented the Court from fully addressing gerrymandering until this term. “What has hung courts up under an Equal Protection approach is where to draw the line in terms of Constitutional doctrine. We chose a First Amendment retaliation doctrine in our case,” he explained.

“The Court is concerned with wading into a highly political area,” Kimberly continued, “but there’s no way for the political branches to solve this problem. If the Court again rules it’s not justiciable, they’re effectively telling voters it’s up to them to solve the problem.”

“Clearly the Court recognizes that there’s something problematic,” Li added, “but the question is how to frame it in a way that doesn’t pick up too much, or too little, of the problem.”